[EL] ELB final Election Day update

[Rick Hasen]

Is The Election Close Enough for Clinton to Hold Off on Conceding?<http://electionlawblog.org/?p=89061>
Posted on November 8, 2016 11:21 pm<http://electionlawblog.org/?p=89061> by Rick Hasen<http://electionlawblog.org/?author=3>
Without access to all the data, it is hard to judge the Clinton campaign’s call. Recall that John Kerry waited until the next morning to concede to George W. Bush in 2004, until the Ohio result was clear.
The additional twist now is that if the margin in a key state is within tens of thousands of votes  in some of these states, there’s the likelihood that Clinton picks up <http://electionlawblog.org/?p=89047> a lot of votes that come in later through provisionals and absentee ballots. Whether it would be enough is the big question.
We will have a much better sense in the morning, and no one wants to be the next Al Gore.
But the most likely outcome now is a Clinton concession in the morning tomorrow.
(As to whether Clinton is being like Trump (who was roundly criticized) in failing to promise to concede upon losing, I’ve said repeatedly that candidates should concede once it is clear they have no path to victory, and not when it is too close to call.  Trump was not limiting his comments to a razor-thin election.)


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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“What If There is a 269-269 Tie….and a Faithless Elector?”<http://electionlawblog.org/?p=89059>
Posted on November 8, 2016 9:47 pm<http://electionlawblog.org/?p=89059> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley:<http://moritzlaw.osu.edu/election-law/article/?article=13357>
As of this writing, there is some chance that the Electoral College could end up in a 269-269 tie, with uncertainty on which candidate ultimately would end up ahead in the national popular vote. Under the Twelfth Amendment, a 269-269 tie goes to the U.S. House of Representatives, with each state having one vote, and a majority of all states (26) necessary to elect a president. In other words, California and Wyoming—despite their widely divergent populations—each have one vote in this special Twelfth Amendment procedure, which has not been used since 1824.
With all the recent talk about the possibility of faithless electors, one begins to ask the question: would it be possible for a faithless elector on December 19 to shift the Electoral College vote to 270-268, thereby avoiding the election going to the House of Representatives under the Twelfth Amendment? I explored that question as part of a conversation<http://www.nationallawjournal.com/supremecourtbrief/id=1202771879990/Could-the-Election-System-Derail-Again?mcode=0&curindex=0&curpage=ALL&slreturn=20161008213127> with the National Law Journal’s Marcia Coyle.
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Posted in electoral college<http://electionlawblog.org/?cat=44>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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